Comcast reiterates a shifting promise of ‘no paid prioritization’

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Comcast has promised before that it does not and will not engage in paid prioritization, and today the company has reiterated that stance — after being called out for having apparently weakened it over the last year.

Over the last few years, Comcast’s Senior Executive Vice President and Chief Diversity Officer David Cohen has written several times on the topic of net neutrality. In 2014, when the current rules were pending, he wrote pretty unambiguously:

No paid prioritization – We agree, and that is our practice… We don’t prioritize Internet traffic or have paid fast lanes, and have no plans to do so.

We fully embrace the open Internet principles that have been laid out by President Obama and Chairman Wheeler and that now have been adopted by the FCC… we have no issue with the principles of transparency and the no blocking, no throttling, and no fast lanes rules incorporated in today’s FCC Order.

At some point, however, and this is just a guess but I’m thinking in November of 2016, Comcast apparently decided that this particular promise may have been a little overboard. In April of 2017, the company posted three items to its blog. Promises were again made, but slightly different ones.

Here is what we stand for when we say we believe in an Open Internet. We do not block, slow down, or discriminate against lawful content. And we believe in full transparency…you’ll know what our customer policies are.

We don’t block, throttle, or discriminate against lawful content delivered over the Internet, and we are committed to continuing to manage our business and network with the goal of providing the best possible consumer experience.

Puzzling because according to the company’s own promises, we should expect nothing less than “no paid prioritization” whatsoever. That is, after all, what he wrote not long before. Yet the promise does not appear in any of the three pieces published in April. Since Watson promised full transparency, we ought to know why that is the case.

Perhaps they were just waiting to explain. The explanation didn’t come in May, when Cohen wrote:

We do not and will not block, slow down, or discriminate against lawful content.

In addition to reclassifying broadband Internet access service as an information service, these FCC efforts can include the adoption of clearly defined net neutrality principles – no blocking, no throttling, no anticompetitive paid prioritization, and full transparency.

Note that here Comcast is not actually stating its own policy, merely explaining what the new proposal would do. It’s not entirely accurate, though: blocking and throttling are not banned under Restoring Internet Freedom. In paragraph 259, the FCC writes: “We find the no-blocking and no-throttling rules are unnecessary to prevent the harms that they were intended to thwart.”

In fact the new rules require ISPs to be transparent about what they throttle or block, and someone thinks there’s a problem, they can take it up with the FTC and antitrust authorities; it’s not the FCC’s business. That’s a whole other discussion, but worth mentioning here.

Don’t worry, though. As David Cohen and Comcast repeatedly promised, the company “has never offered paid prioritization” and never will, “no matter what the FCC does.”

It’s just a funny coincidence that as soon as the FCC suggested that paid prioritization isn’t, strictly speaking, forbidden, Comcast dropped it from the list of things it won’t do. Now it just won’t do anticompetitive paid prioritization.

What constitutes “anticompetitive,” you ask? That will be hashed out over years of court cases and federal lawsuits, just as with every important definition in this industry. And you can bet your bottom dollar that Comcast will be spending a lot of time and money making sure that definition is to its liking!

After a few recent articles pointed out this vacillation on Comcast’s part, I asked the company for comment. It told me at the time that “Comcast hasn’t entered into any paid prioritization agreements. Period. And we have no plans to do so.” When I mentioned that it would be helpful to consumers to see this posted publicly as it was before, a Comcast representative told me I was “splitting hairs.”

Is Comcast creating Internet fast lanes? No, we’ve said consistently we’ve not entered into paid prioritization agreements and have no plans to do so.

I unironically applaud Comcast for saying so, and I hope it keeps its word, although I reserve the right to remain skeptical. The promise did fade away briefly, and I can’t help but think that had no one made a fuss about it, it would have continued fading.

Cohen said: “Comcast will continue to give our broadband customers the net neutrality protections they have come to expect.” And that’s what I’ve learned to expect.

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